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Can You Settle Your Medical Malpractice Case Before Ever Filing a Lawsuit and Before You Ever Hire an Attorney?

The short answer is yes you could.
The longer answer is that may be very dangerous.
Let me tell you why.

You loved your doctor.
You went to him for many years.
Never had a problem.

Until you did.
Until you suffered terrible injuries.
All because he dropped the ball.

All because he was careless.
You know in your heart of hearts that you have a good case.
You know you did nothing to cause or contribute to your injuries.

You also know that if you sue your doctor it could take years to resolve.
You know you'd have to find an attorney to represent you.
You also know you'd have to pay an attorney a percentage of whatever you get if you're successful.

YOU WANT THIS OVER QUICKLY

You don't want this to take years to resolve.
You also don't want to share the amount with an attorney.
You've got a better idea.

You decide you're going to confront your doctor.
Privately. 
In an adult-like manner.

You want him to hear you out.
You want him to know that your injuries are permanent and that he caused them.
Why?

Because you feel he should know.
You feel that he'll accept responsibility for his actions.
You think you can get a quick settlement this way.

The reality is that you could.
And yes, this could short-circuit the entire litigation process.
And yes, this could end well for you.

But the likelihood of that happening is close to zero.
Let me tell you why.
First, when you confront your doctor, he's going to get defensive.

He's likely going to tell you he did nothing wrong.
What do you say to that?
How do you respond to his claim that what he did was NOT malpractice?

"IT'S NOT MY FAULT!" doctor tells you

"Mrs. Jones, I'm sorry to learn what you've gone through. Unfortunately, the problems you describe are known complications of the procedure," he tells you. "Remember during our presurgical meeting? I went through with you the possible problems you could expertience. I told you that it doesn't happen often but the following problems can occur..." he proceeds to tell you sincerely.

"The complications you experienced are known to occur. I wish we could have prevented them, but sometimes these things happen through no fault of anyone," he tells you earnestly. 
His words actually make sense.
You remember some of what he's saying about your presurgical meeting to discuss the risks, benefits and alteratives to this surgial procedure.

If this happens, what are you going to say in response?
"But I walked into ambulatory surgery 'fine' and now I have all these problems. Surely you must have done something wrong!" you want to yell out.
You know if you approach him that way, you will only escalate matters quickly.

Your voice will rise.
Your temper will rise.
His response will likely match your level of anger.

Once it escalates, he'll likely throw you out of the office telling you never to return.

If that occurs, you've accomplished little except to raise everyone's blood pressure and leave with hurt feelings.
Let's change the scenario a bit.
Let's say you confront your doctor and he listens patiently and quietly.

He's giving you his undivided attention.
At the end of your detailed explanation, your doctor says "I'm sorry you went through that. Maybe I did screw up. Maybe I did drop the ball. If so, I apologize. What will it take to make this go away?" he asks sincerely.

You were not expecting that type of response.
Your mind goes blank for a few moments as you gain your composure.
You say the first thing that comes out of your mouth.

"Ten thousand dollars!" you exclaim, not knowing what your doctor's response will be.

He studies you for a few moments quietly before answering.
Finally, he says "I understand now what you went through. That's a fair number. I will pay you what you ask for," he says.
YOU ARE IN SHOCK.

You can't believe it.
HE SAID YES!
HE SAID HE'D PAY YOU!

DOCTOR AGREES TO PAY!

The doctor shakes your hand and says he'll be in touch soon.
You walk out of his office elated.
You haven't been this happy in a long time.

You actually did it!
You confronted your doctor and explained to him your problems and frustrations.
Your doctor agreed!

You are thrilled.
All the way home you have a satisifed smile on your face.
Later that night you tell your spouse.

He can't believe your doctor actually agreed to pay.
He's happy for you but skeptical.
He's glad this is almost over.

He starts thinking about how the two of you can use that money.
"Honey, is that taxable once we get it?" he asks you.
"I don't know," you say.

"Do we have to declare it on our income taxes?" he asks.
"I'm not sure. We'll have to ask our accountant," you respond.
Days go by without any word from your doctor.

You call his office, all without any response.
You've called multiple times and left a message each time.
All without any response.

Days turn into weeks.
No response.
No response to your phone calls.

You decide to send him a letter reminding him about his agreement to pay.
Days and weeks go by without any response from your doctor.
You have his email or at least his office email.

You draft a nice email reminding him what he agreed to and send it to the office email address.
You check your computer multiple times a day expecting a reply any time.
Hours go by without a reply.

Days go by without a reply.
Weeks go by without a reply.
Now you're getting annoyed.

DOCTOR IS NOW IGNORING YOU

Now you believe he is intentionally ignoring you.
Now you're getting angry.
Now you're getting frustrated.

You decide to schedule an office appointment to talk to the doctor again and remind him of his promise to you.
You call the office to set up an appointment.
The receptionist tells you that she has specific instructions from the doctor that you are no longer welcome in his office and you are not to contact him again.

You hang up the phone furious.
Your blood is boiling.
It's time you reach out to an attorney.

You tell your lawyer about how the doctor promised to pay you.
"Did you have it in writing?" he asks.
"Uh no," you say.

"Was it recorded on video?" he asks.
"Uh no," you answer.
"Was it recorded on audio?" he asks hopefully.

"Sorry, no," you say.
He tells you it's highly unlikely you'll be able to enforce that verbal agreement to pay you $10,000 for what he did to you.
He then asks "How did you come up with the amount of $10,000 as the value of your injuries?"

You respond "I don't know. I just threw out a number and he agreed to it."
"I can understand why he'd agree to it," the lawyer says.
"Your injuries are worth about 50 to 100 times more than what you asked for. The doctor knew that. He had to know that if he agreed to get rid of your claim for only $10,000 this would be the biggest bargain he'd ever gotten," your lawyer says.

"I'll tell you another reason the doctor likely ignored you after your in-person meeting with him..." your lawyer continues.
"He wanted to see how long it would take you to go to an attorney. He was likely hoping that you'd either forget about your claim or he was hoping that by the time you finally came around to speaking to an attorney, it would be too late for you to sue him," your lawyer tells you.

You are shocked.
Shocked that your doctor was hoping the time to sue him would expire.
"If the time limit in which you have to sue him expires, it doesn't matter what you do or what he said to you, you'd be out of luck forever," your lawyer explains.

Thankfully, your time has not yet run out.

NEXT SCENARIO

Let's say you meet in person with your doctor and confront him.
Again, he agrees with you that he screwed up and agrees to pay you $10,000.
"Before I can give you a check for that amount, I need you to sign a piece of paper," your doctor tells you.

"Ok, I'll sign whatever you want. I just need that money," you tell him.
A few weeks later, your doctor sends you a document telling you that if you sign it, he's willing to pay you the $10,000 he agreed to.
You read it.

"JUST SIGN HERE" Doctor says to you

It's called a "General Release."
It has a lot of fancy legal language.
It says that in exchange for $10,000 you agree never to sue him for what he did.

It says you agree never to disclose this agreement or the facts surrouding it to ANYONE. EVER.
It says you agree never to disclose the amount of the settlement.
It also says you can never come back and ask for any more money for your injuries. EVER.

You're now getting worried about the language in this document.
It's over your head.
You don't know what a lot of this legal language means.

Now you're concerned.
You want that money that he promised to give you.
You want this matter to go away.

You don't want to file a lawsuit against him.
You heard this type of medical malpractice case takes two to three years to resolve.
You've also heard that it's extremely stressful.

You just want it done with.
But some of the languange in the general release is worrisome.
You decide you have to speak to an attorney and get legal advice about the release.

IT'S TIME TO FIND AN ATTORNEY

You find an attorney willing to talk to you.
You explain what happened.
You then hand him the general release and ask him if you should sign it.

He looks it over quickly then puts it aside and asks you a question...

"How do you know the true value of your injuries?" he asks you simply.
You have no answer.
"I don't know," you say honestly.

"How do you know whether the problem you have now will last you for the rest of your life?" he asks.
"I don't know," you answer, wondering if this will be an embarassing pattern.
"How do you know if you'll need additional medical care and treatment for your injury," he asks you pointedly.

"I don't know," you respond again, sounding like someone who has no idea.
"Where would your case be venued if you did bring a lawsuit?" he asks.
"No clue," you respond.

"Did you know that the value of your injuries can be different depending on which venue you bring your case?" he asks.
"I didn't know that," you say, now wondering if it was really a good idea to meet with this attorney.
"Do you realize that if you sign this release and your injuries get worse, you can never come back to the doctor and ask him for more money?"

"Uh no, I didn't know that," you say.
"Do you realize that if you sign this document and you need additional surgery and medical care, he will not pay you a single penny more than the amount stated in this release?"
"No, I didn't know that," you again say, realizing how bad it would be to sign this paper without speaking to an attorney first.

"If you got the $10,000 from the doctor, what would you do with it?" your lawyer asks you.
"I hadn't even thought of that. I guess I'd pay off my medical bills," you answer.
"Did you wonder if this amount of money was taxable?" the lawyer asks you.

"My husband asked the same thing. I didn't know and said I'd ask our accountant. Is it?" you ask.
"If it's for pain and suffering, then no, it's not taxable," he tells you.
"However, if it's to pay you for your medical expenses, then it is," he continues.

"By the way, do you have any liens against the amount you might get from the doctor?" your lawyer asks.
"Uh, I don't even know what a lien is so I can't answer your question," you say, almost in tears now.
"Has any hospital, doctor, health insurance company, Medicare or Medicaid sent you anything saying that they are owed a specific amount of money for the payments they made on your behalf?"

"Actually yes. Now that I think about it, Medicare sent me something about benefits that they paid for the corrective surgery and follow up treatment," you recall finally.

"That means that before you get a dime, you must negotiate with Medicare. Depending on how much money they paid for your medical expenses, you might get nothing after they're paid back. That means all that you've just done to get this settlement would be for nothing," your lawyer tells you.

You feel deflated.
You feel exhausted.
You feel like you missed the boat.

Now you feel like this brilliant idea of yours to try and settle your claim before filing a lawsuit in order to save on attorney's fees and for a quick settlement was probably the worst idea you've ever had. It sure looked good at the time. That was before you spoke to your lawyer.

However, all is not lost.
Assuming your time to file a lawsuit has not yet expired, maybe your attorney can still help you achieve your goal.
Your goal, if I'm not mistaken, is to get compensated for all the harms, losses and damages that you suffered because he was careless.

The way to do that is to start at the beginning.
That means your attorney needs to talk to you and get details about what happened.
He needs about an hour of your time.

Then, you need to sign permission slips that will allow him to get copies of your medical records.
Then, as he obtains your records, he needs to actually read all your records, cover to cover.
Then, he needs to hire a board-certified medical expert in the same medical specialty as the doctor who caused you harm.

Once he finds the right expert, he needs to send all your medical records to him to evaluate.
What is the expert looking for?
In order to confirm you have a valid case, he needs to see if:

  1. Your doctor violated the basic standards of medical care,
  2. If the answer is yes, he needs to see if those violations caused or contributed to your injuries and
  3. If the answer is yes, he needs to see if your injuries are significant and/or permanent.

If the answer to all three of those questions are 'YES' then you have confirmation that you have a valid case.
Now your attorney can go ahead and file a lawsuit on your behalf.

"But wait!" you tell your lawyer.
"I don't really want to sue my doctor. I don't really want to spend years waiting for my case to be resolved. I can't go through this," you tell him.
"I want to try and settle this matter quickly. Is there any way we could approach the doctor to try and get a quick settlment?" you ask hoping he'll say yes.

"There is a way," he tells you.
"But you will be shortchanging yourself. You'll be losing lots of leverage and you will not get anywhere near what your case is really worth...assuming they're willing to talk and try to settle," he says.

INVITE THE INSURANCE COMPANY TO EVALUATE YOUR CLAIM

"If that's what you want, against my advice, here's what I suggest..." he says.
"I will copy all of your medical records and send a cover letter to the doctors' insurance company. I will let them know I represent you in a potential case involving the improper performance of a surgical procedure resulting in significant injury. I will tell them that I have obtained your medical records and had a board-certified surgeon evaluate your case who confirms you have a valid case," he continues.

"In an effort to resolve this matter before filing suit, I enclose copies of my clients' records to enable you to have a medical expert review it with the goal of trying to settle this matter within the next sixty days. If after your expert has had a chance to review the records you are inclined to start negotiating, please reach out to me. If I do not hear from you within the next sixty days, I will assume that you have no desire to negotiate and will proceed forward with filing a lawsuit against the doctor at that time," he writes to the insurance company.

"My client and I are hopeful that after you've reviewed the records with your expert, you will come to the same conclusion we have. The only remaining issue would be what value you place on my clients' injuries. I look forward to talking with you shortly..." your lawyer writes.

By inviting the insurance company to evaluate your case, you are coming to them in a non-threatening manner.
Keep in mind that they don't take kindly to attorneys who threaten to sue if they don't cough up money for their injured clients.
In fact, they just fight harder when an attorney tries to threaten and bully a medical malpractice insurance company here in New York.

You know what a malpractice insurance company does when an attorney threatens to sue if they don't pay?
They laugh.
They ignore the attorney.

The attorney loses all credibility with the insurance company and with the lawyer assigned to represent the doctor.
The insurance company just doesn't care if you threaten them.
They won't tremble in their boots.

They won't care if you sue them or don't sue them.
It's all the same to them.
If your lawyer threatens to sue and doesn't carry out his threat, then he has lost all credibility with the insurance company and he has also violated an important ethical rule.

A lawyer CANNOT threaten litigation if he has no intention of starting a lawsuit.
It's prohibited.
The attorney can and will get in hot water with the grievance committee if he does that.

SUMMARY

Can you settle your claim against your doctor before you ever file a lawsuit?
The short answer is yes you can.
The longer answer is it's not such a good idea, especially if you're trying to do this on your own.

Want to learn a few more negotiation strategies that really smart attorneys use when trying to settle a case? If you do, I invite you to watch the video series below...

RELATED ARTICLES:

  1. Three things to consider when defense offers to settle your case

  2. What happens during a settlement conference on your case?

  3. What happens if you reject the defenses' settlement offer?

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer